KIMBERLY J. MUELLER, District Judge.
This matter is proceeding on plaintiff's Fourth and Fourteenth Amendment claims and state law claim for battery against Officer Torres based on the manner and duration of plaintiff's handcuffing.
On November 6, 2019, the court conducted a final pretrial conference. Attorney Darryl Yorkey appeared for plaintiff Nick C. Buckhalter, and attorneys Richard Osman and Sheila Crawford appeared for defendant Daniel Torres.
After hearing, and good cause appearing, the court makes the following findings and orders.
Jurisdiction is predicated on 28 U.S.C. § 1331, as plaintiff alleges violation of his civil rights under 42 U.S.C. § 1983. Venue is proper under 28 U.S.C. § 1391. Jurisdiction and venue are not contested.
The parties jointly request a trial by jury;
This case involves the alleged excessive force by a police officer as a result of allegedly tight handcuffs. At the time of the incident, plaintiff Nick Buckhalter was a resident of the City of Vacaville and defendant Daniel Torres was a police officer with the City of Vacaville Police Department. On September 9, 2016, Buckhalter was arrested by Officer Torres. Buckhalter was secured in handcuffs and transported to the Solano County Jail. Buckhalter alleges the handcuffs were too tight and caused him injury to his right wrist and hand. Defendant denies plaintiff's allegations.
On September 9, 2016, plaintiff Nick C. Buckhalter and his wife were moving from their home at 296 Madison Avenue in Vacaville, California to Georgia. A large 40-48-foot moving truck was parked on the street in front of plaintiff's home. Plaintiff owned numerous vehicles and had moved six of his cars out of the garage and parked them on the street near the park located across the street from his residence to allow the movers to pack and load the moving truck. Plaintiff parked his Chevrolet Monte Carlo on the street, across from his residence, and three or four houses down from his home. A large vehicle transport truck arrived at approximately 3:00 p.m. to move some of plaintiff's cars to Georgia. The transport truck parked across the street from plaintiff's home.
At approximately 5:00 p.m., plaintiff went to move his Monte Carlo to the vehicle transport truck. Plaintiff got into the Monte Carlo, started the car and put it in drive to pull out.
At that time, off-duty Vacaville police officer Roger Canady was at the park with his young child and he observed plaintiff driving the Monte Carlo and appear to do a "burn out" on the street while children were on the adjacent sidewalk and in the adjacent park in violation of California Vehicle Code section 23109 (speed contests and exhibitions of speed). Plaintiff then parked the Monte Carlo behind the transport truck for loading. When plaintiff exited his vehicle, Canady told plaintiff that the manner he drove the Monte Carlo was unlawful and irresponsible and advised him that he faced being arrested for violation of section 23109. Plaintiff walked towards Canady and Canady identified himself as an off-duty police officer and warned plaintiff there were kids and other pedestrians nearby and that he should not be driving in the manner he was. Plaintiff claims he did not believe Canady was an off-duty police officer.
A few minutes later, while Canady was seated at the park, he heard plaintiff yell, "I'll be back," but he did not know if this was intended as a threat towards him. Canady called the Vacaville Police Department and requested a uniformed officer to come to the scene and arrest plaintiff for violating Vehicle Code section 23109.
Approximately five minutes later a police car pulled up, parked and a uniformed officer, defendant Officer Torres, walked up to Canady and started talking to him. Plaintiff claims that he believed they were talking about him so he went across the street towards the officers. As plaintiff approached, Officer Torres said, "hold on a minute," so plaintiff stopped and stood by the back of the Monte Carlo, and then sat on the trunk of the car until Officer Torres came to talk to him. Officer Torres recorded his interaction with plaintiff on his body worn camera that was attached to his chest with a clip. Plaintiff admitted to Officer Torres that it was inappropriate to be doing burn outs down the street in close proximity to the park and children. Plaintiff told Torres that the tires spun out and he apologized for the tires spinning and jerking. Officer Torres observed black tire tread marks on the roadway.
Officer Torres told plaintiff he was going to issue him a citation for his reckless driving, and plaintiff became very angry. Plaintiff told Officer Torres that when he was done issuing the citation, plaintiff was going to approach Canady and "knock him out." Plaintiff then stated, "You're going to also have to arrest me, because I'm going to knock him out as soon as this is over. If you run my record, you know, I don't have no felonies, no warrants. I have a lot of assaults and he's going to get assaulted as soon as you leave." Plaintiff motioned towards Canady as he made these statements.
Officer Torres told plaintiff to sit on the curb but plaintiff became increasingly agitated, refused to sit on the curb and said, "Why should I have to sit on the curb?" Plaintiff said he was 60 years old and was sitting on the car while talking to Officer Torres. Officer Torres twice asked plaintiff to sit on the curb before plaintiff finally complied. Plaintiff got off the trunk of the Monte Carlo and sat on the curb. Because of plaintiff's aggressive and agitated behavior and his threats to physically attack Canady, Officer Torres decided to place him in handcuffs due to concerns for his own safety and the safety of Canady. Officer Torres ordered plaintiff to place his hands on top of his head, but plaintiff did not comply. Plaintiff finally placed his hands on his head after several orders. Plaintiff removed both of his hands from the top of his head and brought them in front of his body, then moved them on top of his head again.
Officer Torres placed one handcuff on plaintiff's right wrist while his hands were on top of his head and proceeded to pull his arms behind his back to secure his left wrist behind his back. While Officer Torres performed this maneuver, plaintiff said, "I got a rotator cuff, you see my shoulder," and he pulled his left hand out of Officer Torres's grip and towards the front of his body. Plaintiff's movement of pulling his arm from Officer Torres' grip caused the body worn camera to fly off of Officer Torres' body and onto the ground, which caused the video to stop recording. Plaintiff admits he tried to hold his arms stiff so Officer Torres could not pull his arms behind his body and he was pulling his left arm towards his body "the whole time" to avoid being handcuffed.
Canady observed the interaction between plaintiff and Officer Torres and it appeared to him plaintiff was agitated and arguing with Officer Torres. Canady observed several of plaintiff's associates walking toward Officer Torres and plaintiff and he was concerned for Officer Torres's safety because of plaintiff's aggressive resistance and the group of plaintiff's associates moving that direction. Based on the escalating situation and plaintiff's physical resistance, Canady determined it necessary to assist Torres in handcuffing plaintiff. As plaintiff and Torres struggled on the ground, Canady approached. Canady used his right knee to lean on plaintiff's left side to roll him on to his stomach so Officer Torres could handcuff plaintiff's left wrist. Canady then moved away from the area and left the scene. Canady used no other force and had no other involvement in plaintiff's arrest. The only force Officer Torres used during the incident was bringing plaintiff's hands behind his back to secure him in handcuffs.
Prior to securing plaintiff in handcuffs, Officer Torres did not observe plaintiff exhibit any mobility limitations, including limitations with his left shoulder. Rather, during Officer Torres' investigation, plaintiff reached behind his back with his left hand to retrieve his wallet from his left rear pocket, raised his left hand above his head to waive at passersby and to point at someone across the street, used both hands to brace himself as he hopped onto the trunk of his vehicle and supported his body weight and never exhibited any pain or difficulty.
Once plaintiff's hands were cuffed behind his back, Officer Torres lifted him up to place him in a police car. Plaintiff was secured in handcuffs behind his back and placed in the back of Officer Torres' police vehicle.
After plaintiff was secured in the police vehicle, he told Officer Torres his shoulder was hurting. Plaintiff did not tell anyone other than Officer Torres about his shoulder or that he was feeling pain. Officer Torres then took plaintiff to the hospital to be examined within fifteen minutes of leaving plaintiff's residence. X-rays were taken and a doctor reported that plaintiff's shoulder looked fine and was just inflamed. Plaintiff was given an injection in his left shoulder, which gave him pain relief an hour-and-a-half to two hours after the injection.
Officer Torres transported plaintiff to jail.
The court will decide evidentiary disputes and/or motions in limine on the first day of trial, or reserve ruling, where appropriate, as trial unfolds. If a party wishes to contest a pretrial ruling, it must do so through a proper motion or objection, or otherwise forfeit appeal on such grounds. See Fed. R. Evid. 103(a); Tennison v. Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir. 2001) ("Where a district court makes a tentative in limine ruling excluding evidence, the exclusion of that evidence may only be challenged on appeal if the aggrieved party attempts to offer such evidence at trial.") (alteration, citation and quotation omitted). In addition, challenges to expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) are denied without prejudice. Should a party wish to renew a Daubert challenge at trial, it should alert the court, at which point the court may grant limited voir dire before such expert may be called to testify.
Motions in limine shall be filed with the court no later than
Plaintiff anticipates filing motions in limine to exclude the following evidence:
Defendant anticipates filing motions to exclude:
This case proceeds on plaintiff's Fourth Amendment excessive force claim and his Fourteenth Amendment claim for failure to protect against Officer Torres based upon the manner in which Officer Torres secured plaintiff in handcuffs. Plaintiff also brings a claim for battery against Officer Torres based on the same facts surrounding his handcuffing. The incident occurred on September 9, 2016, at approximately 5:00 p.m. in front of plaintiff's residence, 301 Madison Avenue in Vacaville, California. Officer Torres responded to a call for service because plaintiff was reportedly doing burnouts in the street. Officer Torres attempted to secure plaintiff in handcuffs after he threatened to "knock out" off-duty police officer, Roger Canady. Plaintiff resisted Officer Torres but was eventually secured in handcuffs. Plaintiff alleges he was kept in handcuffs for an excessive amount of time and that they were too tight.
Plaintiff was 60 years old at the time of the incident. Plaintiff alleges he suffered injuries to his left shoulder and right wrist. Plaintiff testified that no doctor has recommended any future treatment for the physical injuries he attributes to the incident. Plaintiff alleges he suffered wage loss and loss of earning capacity as a result of the incident. Prior to the incident, plaintiff alleges he earned $5,000 a month as a self-employed mechanic restoring vintage vehicles. He alleges that after the incident, he did not return to work until January 5, 2017, and lost approximately $28,000 in income. Plaintiff alleges he will lose $900,000 in future income. No documentary evidence has been produced to support the past or future wage loss claim. Plaintiff alleges he incurred a towing and storage fee of $900, a $400 fee related to transportation costs and incurred a loss of $300 related to a missing spare tire and jack.
Plaintiff seeks total recovery of $149,600, itemized as follows: $28,000 for lost income up to January 5, 2017; $1,600 in direct economic losses; a reduced future income loss of $20,000 per year for 5 years following the incident; and $20,000 in punitive damages. Plaintiff also seeks attorney fees for 302.6 hours at a rate of $400 per hour, for a total recovery of $121,040. After trial, plaintiff estimates the number of hours will increase by 80 to 100 hours. In his answer to the complaint, defendant indicates he will seek attorney fees if he prevails.
In the court's August 7, 2019 summary judgment order, the court noted plaintiff conceded summary judgment on all claims against defendant Canady and on his state law assault, IIED and NIED claims as to Officer Torres. Summary judgment as to these claims was entered accordingly.
Plaintiff's witness list is attached as
Each party may call any witnesses designated by the other.
2. Upon the post pretrial discovery of any witness a party wishes to present at trial, the party shall promptly inform the court and opposing parties of the existence of the unlisted witnesses so the court may consider whether the witnesses shall be permitted to testify at trial. The witnesses will not be permitted unless:
Plaintiff's exhibits are identified in
The court encourages the parties to generate a joint exhibit list to the extent possible. Joint Exhibits shall be identified as JX and listed numerically, e.g., JX-1, JX-2.
All exhibits must be pre-marked.
The parties must prepare exhibit binders for use by the court at trial, with a side tab identifying each exhibit in accordance with the specifications above. Each binder shall have an identification label on the front and spine.
The parties must exchange exhibits no later than twenty-eight days before trial. Any objections to exhibits are due no later than fourteen days before trial.
1. The court will not admit exhibits other than those identified on the exhibit lists referenced above unless:
2. Upon the discovery of exhibits after the discovery cutoff, a party shall promptly inform the court and opposing parties of the existence of such exhibits so that the court may consider their admissibility at trial. The exhibits will not be received unless the proffering party demonstrates:
The parties do not believe any special handling of trial exhibits is necessary. The court will return all exhibits to the parties at the conclusion of trial and the parties are responsible for exhibit preservation for purposes of appeal.
The parties do not intend to introduce any discovery documents unless used for impeachment.
The parties do not anticipate any pre-trial discovery motions apart from the in limine motions indicated above.
No stipulations currently exist between the parties.
Defendant does not anticipate any amendments but reserves the right to move to amend his pleadings to include additional affirmative defenses, if necessary. Any attempt to amend will be governed by the Federal Rules of Civil Procedure.
The parties attended a mandatory settlement conference on September 27, 2018. The case did not settle. At the final pretrial conference, the parties jointly requested a second settlement conference before a magistrate judge. Accordingly, a settlement conference is set for
The parties do not believe the action can be presented upon an agreed upon statement of facts because there are key factual disputes between the parties.
There will be no separate trial of issues.
Counsel must lodge the sealed original copy of any deposition transcript to be used at trial with the Clerk of the Court on the first day of trial.
A jury trial is set for
Each party is granted
IT IS SO ORDERED.
1. Vacaville Police Department Police Report for case 2016-07061 and all supplements thereto and all materials and evidence referenced therein, including but not limited to the following:
2. Vacaville Police Department Certificate of Release
3. California Department of CHP Vehicle Report for Case No. 16-7061
4. Solano County Sheriff's Office Arrest Report for Case No. 16-7061
5. Solano County Detention Facilities On-View and Probable Case Declaration Information for Case No. 16-7061
6. Body camera video recordings from the following Vacaville Police officers:
7. Dispatch audio related to the subject incident
8. Radio Traffic related to the incident
9. Relevant/material portions of Officer Torres's personnel and training records — subject to protective order. See ECF No. 44.
10. Any and all photographs related to the subject incident
11. All City of Vacaville Claim Forms submitted by plaintiff related to the incident
12. Vacaville Police Department policies including but not limited to the use of force
13. CAD Operations Report related to the subject incident
14. Timeline of Plaintiff's arrest and transport
15. Stills from Officer Torres' body camera re plaintiff's body movements
16. Videos produced by plaintiff related to the subject incident
17. Photographs produced by Plaintiff related to the subject incident
18. Report by defense expert Dr. Michael Grafe
19. Report by defense expert Don S. Cameron
20. Plaintiff's medical and billing records, including the records reviewed by defense expert, Dr. Grafe
21. All evidence listed in plaintiff's exhibit list.
